Stand Your Ground' works -- for criminals

[KansasVoter]

I will be much amused about the responses. Please make sure to respond!

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By Fred Grimm, The Miami Herald

Aug. 05--A gang of young street thugs drove into a rival gang's turf, guns at the ready, looking for a fight.

Thirty shots were fired that day in 2008. A 15-year-old kid was killed. Two of the invading gang members faced homicide charges.

But the case fell apart this spring, lost in the chasm between gun reality and the gun myths promulgated by the Florida Legislature.

The actions of the two gun-wielding Tallahassee gangbangers, a Leon County Circuit Court judge ruled, were protected from prosecution by the 2005 "Stand Your Ground" law that expanded the definition of justifiable self-defense into something vague and plainly dangerous.

Someone claiming to feel "threatened" no longer has an obligation to retreat, call police or avoid the use of deadly force. "What this means, as illustrated by this case, is that two individuals, or even groups, can square off in the middle of a public street, exchange gunfire, and both be absolved from criminal liability if they were reasonably acting in self-defense," wrote Circuit Judge Terry Lewis.

'LIKE THE WILD WEST'

"It is very much like the Wild West," said the judge, as he tossed out the charges against the two Tallahassee gun thugs in May. "Maybe that is not what was intended, but that seems to be the effect of the language used."

"Before this law, I kind of had an obligation to avoid going to a gunfight, to avoid deadly force," Second Circuit State Attorney Willie Meggs said Wednesday. "Before this law, I kind of had an obligation to call the police. Now, I can go to a gunfight and stand my ground."

Meggs, president of the Florida Prosecuting Attorneys Association back in 2005, had warned that Stand Your Ground legislation would spawn unintended consequences. He called it the "shoot your Avon lady law."

The narrative in 2005, when this law was shoved through the Legislature by the National Rifle Association, was that this would protect innocents forced to fend off home invaders, muggers or carjackers. The mere claim of fear would now come with the legal presumption that deadly force was justifiable.

BAD GUYS ARE HELPED

The law has complicated once-routine homicide prosecutions. "We have been forced to spend significant time and resources litigating defense motions which, in essence, seek court-ordered immunity for defendants charged with violent crimes," Palm Beach State Attorney Michael McAuliffe told me via e-mail Wednesday.

McAuliffe described a 2007 first-degree murder case that twice hung with juries unable to resolve the murky reach of Stand Your Ground. "The confusion that can surround the "Stand Your Ground" law makes for difficult hurdles even in cases where we have violent, aggressive conduct. The law has the great potential to be misapplied and could well protect violent criminals in specific cases."

Miami-Dade prosecutors are grappling with similar complications. And lawyer Zachary Weaver, in a 2009 study of Stand Your Ground for the University of Miami Law Review, warned that the amorphous law has given defense lawyers as much a "plea-bargaining chip" as an actual defense.

None of this is surprising to anyone who listened to the warnings of prosecutors or police chiefs back in 2005. And none of this has inspired legislators to rethink a flawed piece of legislation.

"It's unfortunate," Meggs said Wednesday. "We can't seem to get their attention."

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To see more of The Miami Herald or to subscribe to the newspaper, go to http://www.herald.com.

[rrneck]

1. Link to editorial.

http://www.miamiherald.com/2010/08/04/1761938/stand-your-ground-works-for-criminals.html

[rrneck]

2. Florida statute,

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=Ch0776/ch0776.htm
776.032 Immunity from criminal prosecution and civil action for justifiable use of force.--

(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term "criminal prosecution" includes arresting, detaining in custody, and charging or prosecuting the defendant.

(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.

(3) The court shall award reasonable attorney's fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).

History.--s. 4, ch. 2005-27.

776.041 Use of force by aggressor.--The justification described in the preceding sections of this chapter is not available to a person who:

(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or

(2) Initially provokes the use of force against himself or herself, unless:

(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or

(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

It looks like we're still looking for the same answer to the same question: Who started it?

[X_Digger]

3. And that pesky fourth amendment lets criminals go free.

We gotta do something about that- that horrible fifth amendment, too.

:sarcasm:

[friendly_iconoclast]

5. Good one. You've pointed out one of the markers for a bad argument.

Ask if something very similar to what the person you're arguing with advocates should be done.

If they suddenly remember an urgent appointment and pull an Elvis, you've scored...

[proteus_lives]

11. Don't worry. If KV and his pals get their way, we won't have to worry about any of them.

But hey, at least we'll be safe.

:sarcasm:

[virginia mountainman]

4. LOL "Wild Wild West"!!!

[Euromutt]

12. In fairness, it's relevant in one sense

Namely that, in the Old West, in the (actually quite rare) situation that two individuals engaged in a gunfight by apparent mutual consent, the jury in the subsequent trial would quite frequently acquit the survivor on grounds of self defense, even if the survivor was the one who instigated the fight by challenging the deceased.

Steven Lubet, in his article "Slap Leather!: Legal Culture, Wild Bill Hickok, and the Gunslinger Myth" (http://tarlton.law.utexas.edu/lpop/etext/ucla/lubet48.htm), argues quite persuasively that, while the exploits of legendary gunfighters were without a doubt at best exaggerated and at worst fabricated entirely,

None of this would have been possible, however, if gunfighters had been scorned in their own hometowns. It would have been impossible for gunslingers to become literary heroes if the real-life models had not been inclined to brag, as Hickok did without apparent fear of ostracism, about shooting dozens of men. In the absence of popular support in the West, gunslingers could never have become folk heroes in the East.

Thus, he argues, there must have been strong cultural acceptance of the notion that it was not a criminal act to shoot someone who allowed himself to get involved in a gunfight.

The comparison only goes so far, however. Under "Stand Your Ground" statutes, a defendant might successfully escape conviction even if he were a willing participant in a violent confrontation, but only if evidence were lacking that he was, in fact, a willing participant. By contrast, Hickock's acquittal for the killing of Davis Tutt occurred despite plentiful evidence that Hickok instigated the confrontation with Tutt, both verbally and by his actions (essentially, Hickok was the beneficiary of jury nullification).

[Ready4Change]

6. Seems complicated, but isn't.

First, abandon the concept of a gang owning 'turf.' You might own a home, but the street is public space. One 'thug' has just as much right to be there as any other 'thug', no matter what gang they belong to. There's no such thing as an 'invading' gang member. (see below for what there may be instead.)

Instead ask, who started it? Who threatened lethal force first? Who drew first? Did the 'invaders' come in, guns blazing out the windows of their car? Or did the 'locals' take offense at the 'invaders' moving along what they (erroneously) consider to be 'their turf', and thus open fire?

Anyone who's been in or witnessed a bar fight knows these things are hard to judge. Very few people see the first punch that is thrown, or the line between an accidental bump and an intentional shove is blurry. But when you get into court you must be definitive, or you can't press charges at all. A lot of bar fights, unsatisfactorily, result in no charges because it's difficult to identify a key aggressor.

[PavePusher]

7. You seem to be implying that had Florida not passed this law....

this either would not have happened, or they would have been able to prosecute someone.

Ummm, I'm not seeing it.

[aikoaiko]

8. The FL stand your ground law does not apply to people engaged in criminal activity

If the FL stand your ground law did indeed help someone evade prosecution it is because they couldn't show they were engaged in criminal activity before they defended themselves.

If that is true, then the editorial you posted is distorting reality.

[spin]

9. A complicated case ...I hope you will be "amused" by my response ...

More details of the actual incident can be found at http://www.wctv.tv/home/headlines/92183289.html.

Obviously the law was never intended to allow shootouts between criminal gangs looking for a fight. Often when the legislature passes a law the wording can lead to confusion.

But the "stand your ground" law has benefits and it's always a good idea to NOT throw the baby out with the bath water

Prior to this law, many people were prosecuted because the state felt they had a duty to retreat before using lethal force. Turning your back and running is always a alternative to engaging in a fight, but you may end up dead. (For me, it's a very poor choice, as I have a hip that needs replaced. I don't run, I hobble. My only hope would be that the attacker would be laughing so hard that he either wouldn't shoot or he would miss.) While criminals are not usually proficient with firearms, a lucky shot can kill you just as dead as a round fired by an expert shooter.

Marion Hammer, who was the first female President of the National Rifle Association and is currently the Executive Director for and has represented the Unified Sportsmen of Florida was interviewed on radio about the stand your ground law in 2005. Some excerpts from the interview:

***snip***

HAMMER: The castle doctrine law was signed into law on April 26th of this year. It did not take effect until October 1st because jury instructions had to be re-written. The jury system and the prosecutors in this state had started changing the law and jury instructions to simply give the edge to criminals. So because there was a delay in the legislation taking effect, the Brady Campaign, who had been unsuccessful in defeating the campaign, had decided to run a campaign and get a lot of publicity and in essence terrorize our tourists by attempting to make them think that if they came to Florida they could be shot. That is absolute nonsense.

The castle law doctrine has three major components. It restores the right of a law-abiding citizen to protect himself and his family in his home. It establishes the presumption that if someone breaks into your home or forcefully intrudes into your home of your occupied vehicle, that they are there to do harm and that you may therefore use force, including deadly force, to protect yourself and your family and you are not going to be badgered by a justice system that protects criminals.

The second thing that it does is it removes the duty to retreat when you are under attack by a criminal. The duty to retreat had been imposed by the system and essentially if someone had tried to drag a woman into an alley to rape her, the women – even though she might be licensed to carry concealed and ready to protect herself, the law would not allow her to do it. It required her to try to get away and run and be chased down by the perpetrator before she could then use force to protect herself. That was wrong. So the duty to retreat from any place that you have the right to be has been removed. If you are attacked, you can still run if you want to. But if you want to protect yourself, you can in effect stand your ground and protect yourself.

The third component deals with a prohibition against civil lawsuits by criminals or the families of criminals who had begun to profit by their crimes by suing victims who may have harmed or killed criminals who were attacking them or intruding into their homes. It is just wrong for a system to allow criminals who have attacked you to turn around and sue you when you defend yourself and do harm to them.

So that basically is what the law does. When you are outside the home you can only meet force with force and then deadly force only if you reasonably believe that it is necessary to prevent death or great bodily harm. In your home, they break in, you can use whatever force you choose.

GIACHINO: You mentioned that it applies inside the home and outside the home. Outside the home, your car is treated like your home. What about on the street? You mentioned the example of the woman being dragged into an alley. So long as she is in a public place, that she is lawfully entitled to be, she has the protection, right? If she is trespassing, then she is not afforded the same protection under the law, is that right?

HAMMER: You are absolutely correct. The law states that if you are in a place where you have a lawful place to be. It also specifically deprives an individual of these rights if they are committing a crime. So there is no way that criminals – street gangs in fact, could claim self-defense. Mutual combat has never been justified in the eyes of the law but those who like to ban guns attempted to say that this law would allow street gangs because they were legally in the street. Well combat in the streets is not legal. The law specifically says that you do not have the protection if you are engaged in unlawful criminal conduct. emphasis added
http://www.cfif.org/htdocs/freedomline/current/in_our_opinion/marion-hammer-nra-interview.htm

So it's beginning to look like the law was worded in such a manner that SOME judges can misinterpret it. Obviously, this can be rectified by rewriting the law to clarify it. Repealing it would only subject the woman Marion Hammer mentioned who was being dragged into an alley by a rapist to attempt to retreat before she could use her legally concealed weapon in self defense. It would take the ultimate pacifist to advocate such a requirement. That type of person would probably advise the woman to just submit and enjoy the experience.

And you have to realize that there ARE times when a person who is a criminal has the right to self defense. Last week, the liquor store across the street from my house was robbed. Assume that the robber had got his money and walked out the store, but the owner grabbed a gun and chased him. The robber has every right to defend himself against an attack by the store owner.

edited to change the title, adding "amused".

[Euromutt]

10. Is the problem with the law, or with prosecutors, judges and columnists who don't understand it?

The idea of a "Stand Your Ground" law is that, if you are in a place where you have a legal right to be, and someone unlawfully assaults you, you have the right to defend yourself without first having to try to escape the confrontation. In the event that you use lethal force in self-defense, the conditions of Ability, Opportunity and Jeopardy still apply to determine whether use of lethal force was justified.

The narrative in 2005, when this law was shoved through the Legislature by the National Rifle Association, was that this would protect innocents forced to fend off home invaders, muggers or carjackers. The mere claim of fear would now come with the legal presumption that deadly force was justifiable.

Emphasis mine. This is incorrect; "the mere claim of fear" doesn't cut it, even under a "Stand Your Ground" law. You still have to be able to demonstrate that you had a reasonable perception that:

a) the assailant(s) had the physical Ability to inflict permanent injury or death upon you (e.g. he possessed an implement that could be used to inflict severe injury such as a firearm, blade or bludgeon, outnumbered you by at least three to one, was significantly larger, fitter and stronger than you, etc.);
b) the assailant was sufficiently close and unhampered by restraints or obstacles to have the Opportunity to use his Ability to inflict injury upon you; and
c) that the assailant's words and/or actions caused you to believe you were in imminent Jeopardy of permanent injury or death.

All three conditions have to satisfied for use of lethal force to be justified. To give you an idea when lethal force is not justified:

a) A fit young man with a baseball bat (Ability) is standing 10 feet away from you with no intervening obstacles (Opportunity); however, since he's a baseball player waiting to go to bat, and you're his team's coach, there is no reasonable perception of Jeopardy, and use of lethal force is not justified.
b) A female standing three feet away from you with no intervening obstacles (Opportunity) shouts at you "I hate you! I'm going to kill you!" (Jeopardy); however, she's seven years old and unarmed, while you are an able-bodied adult, so the element of Ability is absent and use of lethal force is therefore not justified.
c) An able-bodied man holding a knife (Ability) is waving the blade menacingly and shouting "Bitch, I'm gonna cut your fucking throat!" (Jeopardy); however, he is standing on the platform of a railroad station and you are on a train rapidly accelerating away from him, so he has no Opportunity and use of lethal force is therefore not justified.

State Attorney Willie Meggs' characterization of the "Stand Your Ground" law is so riddled with falsehoods it's hard to know where to start.

He called it the "shoot your Avon lady law."

Not even close. It's common knowledge that when an Avon lady approaches your house, it's because she wants to sell you some cosmetics, so you're going to have a hard time convincing a jury that you reasonably perceived her to present an imminent threat to your life and limb. Unless, say, she had a deadly weapon in her hand while approaching your front door. Again, the elements of Ability, Opportunity and Jeopardy have to be present.

"Now, I can go to a gunfight and stand my ground."

Wrong again. The Florida statute, which rrneck helpfully cited in post #2, states that use of lethal force is not justified when the user "initially provokes the use of force against himself or herself." When you "go to a gunfight," you are actively seeking out a violent confrontation; "Stand Your Ground" only applies when the gunfight comes to you, not vice-versa. It's hard to escape the impression that Meggs is wilfully misrepresenting the statute's provisions, because otherwise it's a mystery how he managed to get through law school and pass the bar exam.

In the case of Jeffrey Brown and Andrea Tyler, the gunfight does appear to have come to them. As the WCTV reports (linked to by spin in post #9) point out, "independent witnesses testified that Jackson* and his friend, Jamal Taylor, fired the first shots in the confrontation." Now, it is possible that, in a certain sense, Brown and Tyler did provoke the confrontation, since the WCTV reports also mention that Jeffrey Brown was convicted "for another shooting that occurred earlier the same night," which raises the possibility that the Northside gang's attack on Brown and Tyler was in retaliation for the earlier incident. But that "certain sense" is not the legal one: retaliation does not legally justify an offense (e.g. it's still theft if you steal your stuff back from the guy who stole it from you first), so the Northsiders were engaged in an unlawful assault on Tyler and Brown. And that, given the attendant circumstances, means Tyler and Brown were legally justified in using lethal force in self-defense. We don't do Writs of Outlawry any more, and even people who engage in criminal behavior with some regularity have a right to defend themselves against unlawful assault.

Let's imagine for a moment that this incident had occurred prior to the adoption of Florida's "Stand Your Ground" statute. Provided Tyler and Brown could demonstrate that they attempted to get into their car and flee, but failed to do so, before returning fire (again, according to witnesses, Jackson and Taylor fired first) they would have fulfilled their legal "Duty to Retreat" and the outcome would be exactly the same. It's a key factor in this that the deceased was not some innocent bystander, but an armed assailant, his age notwithstanding, and that the elements of Ability, Opportunity and Jeopardy were thus present.

The complaints listed against the "Stand Your Ground" law in Grimm's opinion piece are not relevant to the circumstances in which the firefight on Holton Street apparently occurred.

* - Michael Jackson, the 15 year-old who was fatally shot during the firefight on Holton Street. Isn't it, well, curious how Fred Grimm in his Miami Herald column mentions in the first few sentences that "a 15-year-old kid was killed" but neglects to mention that the "kid" was armed and not only actively participated in the firefight, but actually initiated it?